Note on Disciplinary Action Proceedure

Historical Background: In service matters, the first relation between the employer and its servant is the relation of master and servant in which, the master has all the rights but the servant has none. The principle regulating the relation was hire and fire under which who hires has the undisputed right to fire and dispense with the services of his servant at his sweet will. This system continued universally throughout the world for decades and centuries. When electric light was invented and the organised production with the power driven machinery started, the employers, to maximize their profits, started to exploit the employees, making their working and living conditions miserable. This extreme exploitation forced the working class to organise themselves in the Trade unions to assert their human rights. The trade unions were formed, primarily, for job security and the improvement in financial service conditions was only a secondary objective. Working class and their trade unions felt that so long there is a work, concerned workman has a right of job on that work and employer can not change the worker at his will. Struggles, sacrifices and agitations, mostly violent, forced the government to enact laws to resolve industrial disputes. In the circumstances, governments become the arbitrator and enacted rules and regulations to regulate the relations of the employer and employees and to provide protection to the employees from being fired at the will of the employer to maintain industrial peace. In British India, Trade Union Act and Industrial disputes Act were enacted to provide that the workers can organise themselves in Trade unions and the worker can be retrenched but only with compensation and the compensation included the right of to be re-employed instead of job being given to another workman. Workers were classified as casual, temporary, probationers and permanent employees to reflect their status in terms of job security. With the end of era of hire & fire, the employers asserted that they have right to dispense with the services of an employee who is indiscipline, inefficient, unfit and untrustworthy. Thus the rules and regulations enacted by the government to regulate the relations of the master and servant recognised the right of the employer to terminate the employment of worker found to be inefficient, undisciplined, untrustworthy or unfit for the job. The concept of taking disciplinary action against the employees came in to existence as an important component of the service conditions. In different industries and establishments, different rules and procedure of taking disciplinary action, as per peculiar requirement of the establishment concerned came up. Government prescribed the standing orders providing the rules for taking disciplinary action, where such rules were not available in any industry or establishment. The disciplinary actions taken by the employer gave rise to the various disputes, which came for adjudication by the courts. Since all the laws in different societies whenever enacted are based on prevailing common law, certain common principles were followed to decide such disputes. In British India, all laws were taken from the British legal system and thus the Principle of natural justice was imported from UK in the matter of adjudicating the disputes concerning the termination of employment as a punishment for proved offence of the employee. Thus, the master got the right to fire the workman but only for proved misconduct and only after following fair process of taking disciplinary action adhering to the Principles of natural justice. Inception of Disciplinary Procedure in Banks: During British Raj, there were banks, employers and bank-employees but there were no Trade Unions of the bank employees. Since there were no Trade Unions there were no service conditions and consequently, as far as bank employees were concerned, hire and fire, continued to be the order of the day.

AIBEA was founded in 1946 but in formative years, it has no collective bargaining and 3 rd party adjudication of the disputes as per applicable law was the only available option with the employees. The period from 1946 to 1966 was a period of continued militant struggles and great sacrifices to assert the collective bargaining on one hand and seeking justice through court of law on the other. Our founding fathers spent considerable time in the corridors of courts and tribunals for securing service conditions through third party intervention as per applicable law. Shri Sastry, a retired judge of the High Court, was appointed by the Central Government to adjudicate the demands submitted by AIBEA and after lengthy court proceedings running in to several years, uniform service conditions of the bank employees, including the procedure for taking disciplinary action were laid down by him through his judgment dated 26.03.1953 which is known as Sastry Award. In subsequent years, through various bipartite settlements, Bank unions and bank management made some minor amendments in the provisions of Sastry Award amending the list of misconducts and punishments that can be inflicted for proved misconducts but the prescribed procedure of taking disciplinary action remains same. Through the settlement dated 10.04.2002, all the previous settlements were superseded and a consolidated settlement without any change was signed. The settlement provides that for the offences, punishable under any law for the time being in force, only criminal courts can prosecute the employee and its decision shall be binding on the management also. It provides that in respect of offences involving moral turpitude and for the specified misconducts classified as major and minor misconducts, management can prosecute the employee departmentally and if the charges are proved, any of the prescribed punishment can be imposed on him as per gravity of the misconduct. It provides the procedure of taking disciplinary action and preferring appeal against the decision of the disciplinary authority. It provides that an employee prosecuted in a criminal court or against whom disciplinary proceedings are initiated can be suspended and provides the rules of treating the period of suspension on duty if employee is acquitted by the court or in enquiry. It also makes provision for preferring the Appeal against punishment imposed. Prescribed Disciplinary Procedure: Para 1 of the settlement dated 10.04.2002 provides that the employee will be given a charge sheet narrating the charges against him as also the circumstances appearing against him to give him opportunity to submit his explanation. It provides that final orders will be passed after due consideration of facts and circumstances meaning thereby that if the explanation is not found satisfactory, disciplinary authority may proceed to take disciplinary action after holding a regular enquiry. Para 2 defines an offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law. Para 3 provides that if an employee is suspected for any offence involving moral turpitude, management may lodge FIR, and may suspend the employee. Para 3 provides that if the employee is convicted, he will be dismissed from the date of conviction and if he is acquitted, he will be re-instated with full back wages. It further provides that the management may give lesser punishment to a convicted employee or may discharge an acquitted employee after holding the enquiry but on payment of three months notice or salary in lieu of notice.

Para 3 provides that if the acquittal is by being given the benefit of doubt, management may in its own discretion treat the entire or part period of suspension on duty on pay and allowances or not. Para 3 provides further that on receipt of the application from an employee acquitted in appeal or revision by the court, management will review his case and he will either be re-instated with full back wages or may discharge an acquitted employee after holding the enquiry but on payment of three months notice or salary in lieu of notice. Para 4 provides that if no prosecution takes place within 12 months of occurrence of the offence, management may initiate disciplinary action after holding the enquiry for misconducts and if during enquiry, prosecution starts, enquiry proceedings shall be kept pending. Para 4 provides that if police comes to the conclusion that there is no case for prosecution, bank may only discharge the employee after holding the enquiry with three months notice or salary in lieu thereof and full back wages. Para 5 defines the Gross Misconduct and contains as many as 20 gross misconducts. Para 6 provides 9 punishments, any of which can be imposed, for proved misconduct. Para 7 defines Minor Misconduct and Para 8 contains three punishments, any of which can be imposed, for proved minor misconduct. Para 9 provides that only one punishment can be given for each proved gross or minor misconduct. Para 10 provides that in the enquiry, proceedings will be entered in a book in which name of the employee, the charges, the evidence in support of the charges, the explanation and evidence tendered by the employee, the findings and the basis of findings and order passed shall be recorded. In practice, this record is not entered in a book and handwritten/typed paper sheets are used. Para 11 provides that the decision to take disciplinary action shall be communicated within three days. Para 12 (a) provides that when disciplinary action is proposed to be taken, a charge sheet clearly setting forth the circumstances appearing against the employee shall be given to him and a date for enquiry shall be fixed, sufficient time being given to him to enable him to prepare and give his explanation as also to produce defence witness and shall be allowed to cross examine the prosecution witnesses. In the enquiry a representative of his union will defend the employee. Para 12 (b) provides that pending enquiry the employee may be suspended and on acquittal, shall be entitled for full wages. In case of any charge found proved, management may treat whole or part of period of suspension as on duty with back wages. Para 12 (c) provides that if any charge is proved, in awarding the punishment gravity of the charges and previous record shall also be taken into consideration and the employee shall be given a hearing as regards the nature of proposed punishment. Para 12 (d) provides for duty relief and payment of TA/DA to the DR. It also prescribed the procedure in Para 12 (e) for imposing punishments, other than dismissal, if employee makes a voluntary admission of the charges, the procedure in Para 12 (f) for imposing punishment of warning without holding enquiry with the condition in Para 12 (g) providing that on 3rd occasion, regular enquiry is a must and such case can not be dealt with under Para 12 (f). Para 13 provides that industry level procedure will prevail on bank level service condition if any. Para 14 provides the manner in which management will notify the disciplinary authorities and appellate authorities for taking disciplinary action against the workman by the Chief executive of

the concerned bank. It clarifies that the DA may conduct enquiry himself or may appoint EO to hold the enquiry. It further provides the period within which and the authority to whom, employee can make appeal against the decision of the disciplinary authority. It provides that personal hearing by the appellate authority is a must in case of dismissals. Para 15 provides for issuing a service certificate without delay. Para 16 provides the procedure for service of communication to the concerned employee. The prescribed procedure is very concise and makes only some general provisions in the matter. On most of the issues, it is silent. However, it provides that Principles of natural justice shall be adhered to. Large number of cases challanging the punishment inflicted through disciplinary proceedings, not only in banks but in various other public-private-government establishments by a procedure in which principles of natural justice were villated by the EO/DA have come up before various High Courts and Supreme Court. In these cases, judiciary have explained the meaning, scope and manner in which the Principles of natural justice Principles of natural justice shall be followed in holding the enquiry and inflicting the punishment. Constitution of India, on which our entire legal, political, economic and social system is based, provides that the judgements of the judiciary shall have the force of law as if the same were enacted as Law by the legislature and hence these judgements or rullings are applicable in taking disciplinary action against the employees. Offences, Moral Turpitude and Misconducts: Offence or crime is an act of omission or commission, which is punishable under any law for the time being in force. Offences are defined in various laws enacted by the parliament and police/CBI is the authorities to investigate offences and cases are tried in criminal courts against the accused and employees are at par with any other citizen. Bank has nothing to do with the cases of offences as law and order enforcing agencies initiate action, except to place the employee under suspension if deemed necessary as per circumstances of each case. A person convicted by a criminal court is not eligible to be employed as a public servant and hence bank is obliged to terminate the employee found guilty in court of law. Similarly if trial court or appellate court in appeal or revision acquits the employee, bank is obliged to reinstate him in services with back wages. However if the acquittal is by giving the benefit of doubt to the accused employee, it is the discretion of the management to either re-instate him or to discharge him without any stigma on him with or without back wages. In such matters, union has little role as in criminal courts, only a practicing lawyer can defend him. If he is acquitted, union has to represent his case to get him re-instated in the service with back wages. Unions must, however give proper advise of implication of court proceedings which may end into acquittal or in to imprisonment sentence with pre-determined effect on job in the bank. Union has also an important role to play as our settlement provides that in such cases, he may be suspended which implies that he may not be suspended. However, the prescribed procedure provides that management can take disciplinary action in respect of offences involving moral turpitude, if police/CBI refuses to prosecute the employee or if the employee is not put on trial within 12 months. It also provides that in such cases, if trial begins, departmental proceedings will be stayed. Sastry Award as modified refers the offences involving moral turpitude but no where the term moral turpitude is defined. Morality in itself is a changing concept from time to time, place to place and even person to person. Further all offences do not involve moral turpitude as violation of traffic rules is surely offence but it does not involve a moral turpitude. However even in the absence of definition of the offences involving moral turpitude, acts which are contrary to honesty and good morals, acts which indicate moral depravity, acts which shock

the moral conscience of the society, acts perpetrator of which is looked upon by the society with contempt and in low esteem are treated as offences involving moral turpitude and fraud, forgery, cheating, bribe, illegal gratification, falsification of accounts are generally believed to be the offences involving moral turpitude. Prescribed procedure provides that management can take disciplinary action in respect of offences Involving moral turpitude. It is so because banking industry is a service industry dealing in money. The money belongs to the public, as banks are trustees of public money and public deals with the bank through the employee on the counter. It is essential that the employees interacting with the customers on behalf of the bank bear un-doubtful character, integrity and unquestionable honesty. An employee suspected of offences involving moral turpitude can not command public confidence and must be proceeded against to maintain the confidence of the customers in the bank so as the business of he bank is not adversely affected. In banking industry, an offence involving moral turpitude is definitely a serious offence, though it may not be that serious offence under IPC, which is a general law and not merely for the bank employees. In this context, Sastry Award as modified provides that an employee who has indulged in an offence involving moral turpitude, unless proceeded against in a court of law, can be prosecuted departmentally. The term misconduct is also nowhere defined in law. However it is generally believed that any conduct which is not good as per social standards is misconduct. As far as bank employees are concerned, misconducts in relation to their employment are defined in the list of major misconducts in Para 5 and in the list of minor misconducts in Para 7 of the settlement dated 10.04.2002. Inclusion of indulging in restrictive practices as misconduct has enlarged the scope of misconducts. A positive action of doing something, which one is not supposed to do and also a negative action of not doing some thing which one is supposed to do, is misconduct. In cases of offences involving moral turpitude, for which FIR was lodged but police refuse to prosecute the employee or if he is not put on trial within 12 months thereof, treated by the bank as a misconduct, and in cases of specified misconducts in the settlement dated 10.04.2002, management has the option to take disciplinary action under service condition following the prescribed procedure. Enquiry, the Union and the DR: Service condition provides that the charge-sheeted employee (CSE) has the right to be defended in the enquiry by a representative of the union on the date first notified for holding the enquiry. This provision is available in banks and not in other industry. This provision is made to ensure that the accused employee does not switch his union to get undue protection from rivalry of the union, as apprehended in argument before Sastry Tribunal by AIBEA. It has to be underlined that it is not any other employee (as in case of officers) but the representative of the union who can defend the employee in the enquiry. This makes the role of union very significant, crucial and important. It implies that, in all cases, the union must provide defence to the member employees. Even if charges are true, employee deserves to be punished and do not follow the discipline of the bank and union, still union must provide defence to ensure that disproportionate punishment is not inflicted. If a representative of other union defends any of our members, union must assert its right to prevent the management from giving undue leverage to the rival union.

As soon as the show cause notice is issued, union must decide its representative to act as his DR and even the explanation of the show cause notice must be submitted with due consultation of the DR. A legally qualified professional is not allowed to act as DR and only in very rare case, that too with prior permission of the Disciplinary authority; an advocate can be permitted to act as DR. Like a criminal court, in enquiry too, there is judge referred as Enquiry Officer, a prosecution counsel called as Management Representative and a defence lawyer called as Defence Representative. DR, basically an office bearer elected by the union based on democracy and not based on merit, qualification and knowledge. DR on the other hand is required to act more than a legally trained professional is and, as such his task becomes very challenging. Odds against the DR are too much as the judge (EO) acts by and large in favour of the management, MR is a legally trained professional and management has all the facilities to mobilise and create evidence in support of the charges. Trade Unions are voluntary organisation and the voluntary desire to help fellow employees, to restrain the management from doing injustice with them, commitment to the union, selfless service, common good instead of individual fame or gain, high moral values and determination to fight out the class enemy are some of the preconditions for taking up this challenge successfully. DR must, therefore be a enlighten person having the knowledge of service conditions, rules, regulations, internal procedures and system of the banks working, applicable administrative guidelines, labor laws including the industrial disputes Act, basic rules of criminal jurisprudence and principles of natural justice. The knowledge can be gained through regular, constant and in depth study. There is no substitute to it. Regular reading and experience make any one a good defence representative. We are observing that over the years, management is becoming more hostile, more professional, more inhuman and more determined to crush the employees and their trade unions. In this scenario, DR has to act as one man army against the management in full knowledge that the charge sheeted employee is entirely depending on him for protection of his job and livelihood and any omission of DR may put the life and liberty of not only the employee but his family too in jeopardy. The fact that this challenge is successfully met by our founding fathers in more odd circumstances gives courage to the Comrades dedicating them to act as DR to meet the present days challenge in a better way. Constitution of India: After independence, in the Constitution, certain basic human rights were recognised and these basic or fundamental rights of the citizens were guaranteed as the governing principles of our legal system. High courts and Supreme Court was given the unrestricted power to uphold the fundamental rights. Thus in framing the rules, regulations and enactment of various laws as also in adjudicating the various cases that came before the judiciary, protection of the fundamental rights became mandatory. Article 12 of the Constitution defined the term State and provided that every organ of the State including Public Sector enterprises shall be treated as State amenable to the writ jurisdiction of High Courts and Supreme Court in all actions. Article 13 of the Constitution provided that there will be equality before law and equal protection of law for all the citizens of the country including the employees.

Article 14 of the Constitution restrains the State and all its organs from framing any laws, rules and regulation which is discriminatory in nature in providing equality before law and equal protection of law. Article 16 of the Constitution provides for the equal opportunity in the matter of public employment. Article 21 of the Constitution provides that no one can be deprived from his life and liberty except with a procedure prescribed by law. The term life was defined by the Supreme Court in D R Nadkarni Vs The Board of Trustees of the Bombay Port and it was held that the expression of life does not merely connotes animal existence or a continued drudgery through life and has a much wider meaning. Where, therefore, the outcome of a departmental enquiry is likely to adversely effect the reputation or livelihood of a person, some of the finer graces of human civilization which make life worth living would be jeopardised and the same can be put in jeopardy only by law which inheres fair proceedings. Our constitution prohibits discrimination i.e. treating equals as unequal and unequal as equals. It forbids arbitrariness in any form. It has been repeatedly upheld that treating a person in violation of principles of natural justice amounts to arbitrariness and is nothing but discrimination and thus violets to the provisions of Article 14. The judiciary has defined the Principles of natural justice and every aspect relating to it and any violation thereof results into setting aside the disciplinary action taken. Hence in the matter of disciplinary action, Principles of natural justice are to be followed strictly. Article 14 condemns discrimination and since arbitrary action results in discrimination, it dictates to act fairly, justly and reasonably which is the antithesis of arbitrariness. Natural justice requires fairplay and thus condemns arbitrary action and as such natural justice is a part of the non-arbitrariness aspect of article 14 and Audi alteram partem is a part of article 14. Article 14 strikes at arbitrariness and ensures fairness and equality of treatment. Natural justice is held as a requirement of procedural reasonableness under article 19. The principle of reasonableness, legally and philosophically is an essential element of equality. The reasonableness of the procedure to be followed is examined from the angle of requirement of fundamental rights under article 14, 16, 21 of the constitution as natural justice has been placed on much higher pedestal than an ordinary maxim by making it an integral part of the fundamental rights, contravention of which invalidate not only administrative order but the law itself. The obligation to record reasons has been extended to quasi-judicial bodies under article 32, 226, 227 or 136, from which judicial review lies, on the ground that judicial review would be rendered nugatory unless the quasi-judicial bodies gives its reasons. It has been held that apart from other reasons, disclosures of the reasons are the best safeguard against arbitrary actions. Article 311 gives the protection to the employees and judicial decisions pronounced by the judiciary on disputes are of great assistance to the workers. Thus, our Constitution dictates that the master can fire the workman but only after following fair process of taking disciplinary action in terms of the laid down procedure in the service conditions, adhering to the tenets of the Principles of natural justice as pronounced by the judiciary. Principles of Natural Justice: There are two basic principle of natural justice viz. Nemo judex in causa sua and Audi alteram partem. It means that one should not be a judge in his own cause and no one should be punished unheard. Natural justice requires that the disciplinary authority should be unbiased and opportunity of hearing the accused must be given, which means impartiality and fairness.

It means that the employee must be given all opportunities to defend himself. The purpose of natural justice is to secure justice, to prevent miscarriage of justice and to ensure fairplay. It requires that all the material relied is submitted in the presence of the accused and opportunity is given to him to rebut, contradict and explain the same. Fair proceeding require that the employee is informed of the charges clearly, well in advance, evidence is taken in his presence, he is given opportunity to cross examine the management evidence, employee is given opportunity to examine his defence witnesses including himself and the EO records his findings based on evidence on record stating the reasons thereof. When there are written procedure of conducting disciplinary proceedings, natural justice requires that it should be followed in latter and sprit. DR must repeatedly and without hitch, apply the principles of natural justice while objecting the rulings of the EO and procedure adopted. The charge sheet issued by the disciplinary authority is the basic document of the management and MR is obliged to prove the charges leveled in the charge sheet. MR can not go beyond the scope of the charge sheet issued and any attempt to prove an allegation not mentioned in the charge sheet can not be allowed in the enquiry constituted to find the facts of the specific allegation leveled in charge sheet. It requires that the employee must be informed of all materials and circumstances appearing against him sufficiently in advance so that he can rebut the same. When an employee is asked to explain some small matter after considerable delay when no can be expected to remember the long past incident, it amounts to denial of opportunity. The belated enquiry in itself is a denial of natural justice. Since the principles of natural justice are applicable and the enquiry proceedings are quasijudicial proceedings in which proceedings are required to be held as per criminal jurisprudence, it implies that the proceedings will be held judiciously and fair and transparent system will be followed in imparting justice to the accused. What goes inside the enquiry room is not for curious onlooker and a certain amount of privacy is a must. Examination of the accused before the prosecution witnesses are examined is a violation of principles of natural justice. Denial of documents demanded by the accused, denial of time to produce defence witness, denial of request for giving time to submit explanation are all violation of the principles of natural justice. Principles of natural justice demand that charges must be specific, certain and not vague to enable the employee to know the exact charges he is required to answer. It is essential that basic rules of admitting evidence as per Indian Evidence Act be followed in admitting and taking and relying the oral and documentary evidence. If the EO acts on inadmissible evidences or refuses to admit admissible evidence or if the findings are not supported by any evidence at all, the error in the findings of the fact amounts to an error of law. Basis of findings is reasons and a finding without reasons is no finding at all. The EO has to act judiciously. He has to apply his mind to the evidence, discuss the evidence and state the reasons of his findings. Any order based on findings without disclosing the application of mind is unsustainable. Any finding not supported by legal evidence or the findings based on such material on the basis of which no reasonable person could arrive at such conclusion are perverse findings and any punishment based on perverse finding is unsustainable.

DR is supposed to ensure that from the time of issuance the charge sheet till the end of entire proceeding by acquittal or punishment, all proceedings are conducted in accordance with the principles of natural justice. If principle of natural justice is violated, the enquiry proceedings and resultant action shall be vitiated. Initiation of the Disciplinary Proceedings: When management decides to proceed against the employee departmentally, the disciplinary authority has three options under the prescribed procedure: 1. to issue the show cause notice under Para 12 (e) narrating therein the allegations against the employees and the circumstances appearing against him, informing the punishment to be imposed on the employee, other than dismissal, if he makes a voluntary and unconditional admission of the charges leveled and to proceed with the enquiry if the employee do not accept the charges leveled. 2. to issue the show cause notice under Para 12 (f), narrating therein the allegations against the employees and the circumstances appearing against him, obtain the explanation and impose the punishment of warning/censure without holding enquiry with the condition that on third occasion, enquiry shall be a must. 3. to issue a show cause notice to the employee, narrating therein the allegations against the employees and the circumstances appearing against him, asking the employee to submit his explanation as to why disciplinary action should not be taken. In case of the employee not accepting the charges under Para 12 (e) of the settlement dated 10.04.2002 and in the cases covered in Para 3 supra, the explanation submitted by the employee will be considered by the disciplinary authority and if the same is not found to be satisfactory, disciplinary authority will proceed further by passing the orders for holding the departmental enquiry. In terms of Para 14 of the settlement dated 10.04.2002 disciplinary authority may hold the enquiry himself or can appoint another person to hold the enquiry and submit his findings to the disciplinary authority. Memorandum, Show Cause notice and Charge Sheet: Charge sheet is the basic document of the management and when charges are serious, management directly issues the charge sheet. However mostly the process starts with the issuance of memo. Memorandum is a plain statement of the allegation on the employee, stating therein the circumstances appearing against the employee and asking him to explain the same. It is an opportunity given to the employee to explain the same. Generally employees out of ignorance either ignore the memorandum or become unduly concerned, complicating the matter further. Some in haste submit a reply that confirms the correctness of the allegation. Such attitude and reaction must be avoided. Issuing a memorandum is no punishment nor will non-reply stop the process from proceeding further. Contents of the memorandum are also not the ultimate truth. Since the employee has no expertise to handle the situation himself, he should approach the union to deal with it. Explanation must be submitted within prescribed time and if need be, extension of time should be requested. DR must carefully study the contents of the memorandum; interact with the employee and other members in the branch to understand the back ground material of the matter. Verifiable facts based on bank record should also be perused and if need be, request for going through the

records may be made. One should try to figure out the purpose or compulsion of the management in the matter. Attempt should be made to stop the process at this stage if possible. One need not necessarily submit the explanation in every case. Direct and plain one sentence denial is also an explanation. DR has to decide what to say and what not to say and how much to say in the reply. In no case, material that can be used by the management to prove the allegation should be incorporated in the reply. Reply should be concise, confined to the points mentioned in the memorandum. Drafting the reply of memorandum is an art and science. It has to be kept in mind that under our constitution, no one can be forced to be a witness against himself. Hence employee can not be forced to give explanation or to answer the questions of EO/MR unless the employee chooses to submit the explanation or produce himself as a defence witness. After the explanation is submitted as above, management in exceptional cases may close the matter or proceed further by either issuing the show case notice or the charge sheet. Enquiry Proceedings: Enquiry has several stages. Enquiry starts with the EO taking confirmation from the charge sheeted employee (CSE) that he has received the charge sheet and understood the contents thereof. If charge sheet is not clear, specific and certain, DR should record his objection at this stage, otherwise CSE has to answer the question affirmatively. It follows with another question by the EO as to whether the CSE accepts the charges or not. Acceptance of charges will result into conclusion of the enquiry and denial of the same will prompt the EO to ask the MR to produce the evidence in support of the charges. At this stage, DR has a right to raise preliminary objections. These objections may cover such points like factual errors, typographical errors, maintainability of the charge sheet itself, competence of the official signing the charge sheet, incorrect classification of clause of misconducts, unauthenticated alterations, vague and ambiguous charges, undue delay in issuing memorandum/charge sheet. All the irregularities, delays, defects are to be recorded by the DR as his preliminary objections with the plea that these defects and infirmities have made the charge sheet defective and not maintainable and demand that the charge sheet be quashed and enquiry closed. Factual and typographical errors may be noticed at the time of issuing the memorandum itself but at this stage, pointing them out results in to two different actions. Sometimes management realises the mistake and closes the matter but mostly, the mistake is rectified at the time of issuing the charge sheet. Discretion is to be used by the DR depending upon the circumstances in particular case in pointing them out. EO is supposed to give his ruling on the preliminary objections. Generally EO attempts to rectify the mistakes through their biased rulings. DR should argue the ruling and record his objections and protest thereon. Some EO avoids the situation by recording that they will consider and take care of the objections at the time of recording the finding. DR should record objections on that also and demand that the charge sheet be declared as null and void. We should patiently create a situation whereby EO overrules objections and orders the enquiry to proceed. Enquiry moves to the next stage and MR is than supposed to submit the list of his witnesses and documents. DR is to go through the list carefully and record his objections if witnesses proposed to be examined by the MR appear to be irrelevant in the context of the charges. Same procedure of dealing with the defence objections will be repeated in this matter also.

MR may also produce the list of the documents to be produced in the enquiry. DR is to go through the list carefully and record his objections if the documents proposed to be produced by the MR appear to be irrelevant in the context of the charges. Same procedure of dealing with the defence objection will be repeated in this matter also. At this stage MR will produce the documents for marking as his exhibits. Documentary evidence is far more reliable than oral evidence as witness may lie, may forget, may be tutored or may change his version but the document shall neither lie, never fail in its contents, shall maintain its impartiality and steadiness of facts provided the document is proved to be genuine, reliable and admissible. Hence DR has to be very careful in respect of every document going on record. Original documents are primary evidence and a copy made/compared with the original is secondary evidence. Producing secondary evidence is not permissible if primary evidence is available. DR has a right to demand that only original documents must be placed on enquiry record. Generally photocopies are produced which is against the provision of the Indian Evidence Act. DR must record his objections and ensure that originals are made available to him for comparing with the photocopies and a competent authority of the bank attests the photocopies. Documents are to be proved as genuine before being admitted in evidence. Admissibility presupposes relevancy. Proof of the execution of the document, proof of the contents and evidentiary value of the documents are all important. Documentary evidence is no evidence unless its maker is examined. Merely by proving the signature on the document, contents of the documents can not be proved. The proof of execution, proof of the contents and evidentiary value of the document is vital. Again, DR has to exercise his discretion in deciding his course of action. DR is entitled a copy of each document taken on enquiry record. If MR produces more documents/witnesses subsequently, DR should object it and should demand the justification for the same and only if EO is satisfied with the reasons stated by the MR, such additional evidence will be allowed. DR has also to examine that the documentary evidence does not include any document created after the issuance of the charge sheet and in such case, object such document on the ground of being irrelevant. Once the documents are marked as management exhibits, enquiry will move to next stage of leading the evidence. When all the witnesses are examined/cross examined, the MR will declare his case closed. After this stage MR can not bring any material on enquiry report in support of the charges. Once the MR closes his case, defence is aware about the entire case of the management, entire circumstances of the case, the evidence on record and charges apparently established against the CSE. DR is required to decide the course of action as per the situation. If allegations are not proved or disproved, DR may lead any evidence. If situation require, DR may produce witnesses and documents to contradict the evidence of MR. DR has the right to demand documents in the possession of the management and EO will give direction to MR to made them available provided relevancy thereof is justified by the DR. DR may produce documents from his own sources as well. DR should be very careful in selecting his witnesses. Any person who is likely to break in pressure of cross-examination may harm the defence case. Facts proposed to be proved through oral testimony must come on record through the testing of cross-examination by MR. Deposition should be brief and to the point. Large number of witnesses causes harm instead of helping the CSE. Discretion has to be applied by the DR. Similarly, DR has to prove the

documents proposed to be produced by him and the contents of the documents should not be harmful to the CSE in any manner. DR may submit a written statement of defence of CSE, explaining the allegation, charges based thereon, and the material on record. In such case CSE is not subjected to crossexamination, as he has not deposed. Alternatively if CSE is intelligent enough to face the cross-examination, he can be produced as Defence witness in which case he will be subjected to cross-examination. It has to be kept in mind that reliability of oral evidence is far more in comparison to the one sided version in a written statement. Thus DR will have the opportunity to submit his list of witnesses/documents, lead his evidence and will have to undergo the same process, difference being that the role of MR will be played by the DR and role of DR will be played by MR and purpose of DR shall be to disprove the charges and purpose of the MR shall be to discredit the evidence produced by the DR to establish that charges are proved. Once the DR close the case of the defence, enquiry proceedings comes to an end. Deposition of Oral Evidence: MR will produce his witnesss one by one, sequence being his choice. MR will ask the questions and his witness will answer it. DR should watch that MR does not put any leading question to his witness as it is prohibited. A leading question is a question put to the witness answer of which is indicated in the question itself and which can be answered by saying yes or no. On such question being asked, DR should raise his objection before the witness answer it. MR can ask his witness to identify a document. However witness can not depose on the contents of any document, exception being the entries in the bankbooks and observations made in the report submitted by the writing expert. Oral evidence is on facts seen, heard, perceived or opinion held by the witness concerned. It has to be stated by the witness on the basis of his memory and not based on any statement given by him in writing earlier, even if the same is produced as document. Once the MR completes the examination in chief of his witness, he will offer the witness for cross-examination by the DR. This process will be repeated with all the prosecution witnesses till all are examined and cross-examined. The dialogue will be recorded verbatim in the enquiry proceedings. Some time, MR may drop some of the witnesses earlier listed by him. DR has to carefully consider the same. In appropriate cases, DR should object the same by taking a position that MR is dropping the listed witnesses as they do not support the charges and their production would have established that the charges leveled are false. Cross-examination of Witness: Opportunity to cross-examine the witness is mandatory as per principles of natural justice. Management collects evidence before issuing the charge sheet and in the process some time written statements of the witnesses is collected. Persons other than disciplinary authority to frame charges do this. Judicially such recorded statement behind the back of the CSE has no relevancy. Testimony of a witness can be relied only if there is no contradiction in facts stated even after cross-examination. There is always a time gap between the time of actual incident witnessed and the time of giving testimony. Witness may have forgotten the facts and his testimony may be at variance with his written statement given earlier. Further witness may be telling a lie in support of the charges as a tutored witness and the process of cross-examination provides an opportunity to the defence to force him to speak the truth.

Cross-examination of the witness is an art and a science. DR has to act very carefully in the matter. DR should closely observe the deposition recorded and if the testimony is contradictory to his written statement on enquiry record or contrary to the allegation leveled, no opportunity should be given to the witness to repair the same in his cross examination. In appropriate cases, DR may opt to not cross-examine such witness. The object of the cross examination should be to make a dent, break through in the testimony, destroy the prosecution case, discredit the witness, discover new evidence and confuse the witness to make him unsure of the facts stated by him confidently. There are various possibilities in cross-examination and DR has to decide his aim in each case and in respect of each witness as per the situation. Each DR may have his own style of cross-examination. One may go to any criminal court and observe the experienced advocates cross-examining the witnesses to learn the art. There are two method of cross examination, first being the method of conducting the cross examination in a sweet, friendly and pleasant manner without harassing or freighting the witness and trapping him to answer the questions in a way which is against the prosecution theory and supports the innocence of the employee. The other method is to frighten the witness and forces him to give irrational answers by loosing his temper and confess the truth in the process. In both methods, DR must remain cool and should not loose his temper as, it may harm his case. Aim should be to force the witness to contradict his deposition, his written statement and the allegations leveled to the extent possible. DR should attempt to disprove the charges or dilute the charges through this process. DR may employ both methods with the same witness as per situation. DR should anticipate and rationally imagine as to what the management witness may depose in the enquiry and prepare his list of questions. DR should add the question, which comes up in his mind on the basis of deposition recorded. DR should decide as to which part of his testimony is against the charges leveled and should not raise those points in crossexamination. His concentration should be on the points, which are against the CSE. DR should not straightway ask the core issues of his testimony. He should mix up the unrelated facts and ask the witness to answer the same in parts, in a sequence that appears to be unimportant. Minute details of the incident must be asked to trap the witness to reveal the facts step by step and in the process contradict the essence of his testimony. Sometimes hand writing experts are examined. DR must remember that Hand writing expert gives only his opinion and opinions of different experts differ with each other. Such witnesses, besides of bring contradictions in their deposition must be forced to confirm that it is only opinion and no scientific conclusion. DR should decide where to start, the sequence through which the witness will be made to travel in an unsuspecting, friendly and pleasant manner and when all the possible routes are blocked give the final blow by bulling him on the basis of his contradictions in his testimony. DR should avoid the over cross-examination and cross-examination should not be outside the scope of the allegations and testimony of the witness. As the testimony comes on record, contradictions in oral testimony of the same witness, between the testimony and the written statement of same witness, between one witness and the other and between the testimony and the allegations are bound to come. DR has to take full advantage of contradictions by prosecution witnesses for the benefit of the CSE. When MR cross examine the defence witnesses, the DR has to be very vigilant and

ensure that the witness is subjected to cross examination only on the facts deposed by the witness and if other questions are put, object the same. Re-Examination and Re-Cross-Examination: After a witness is examined and cross-examined, the party producing the witness will have a right to re-examine his witness to clarify the points on which two different facts have come on record. Opposite party will have the opportunity to cross-examine the witness on the points deposed by the witness. Hearsay Evidence and Circumstantial Evidence: Criminal jurisprudence and principles of natural justice requires that hearsay evidence must be excluded and not relied upon. Hearsay means the evidence of a person who himself has not witnessed any thing but heard others who witnessed the incident and informed him. Since there are possibilities of change of version through oral communication from one person to another, it is not reliable in quasi-judicial proceedings. In banks, management conducts preliminary investigation or vigilance investigation and produces the official conducting such evidence as oral witness. Whereas the investigation as far as regarding the facts verified from the record, which is on record of the enquiry, is concerned or the conclusion/ opinion drawn by him is concerned, he may depose but DR should object if he depose as to what others have briefed to him during such investigation as it is nothing but hearsay. The evidence of such officers has no evidentiary value as their evidence is not direct. Similarly the circumstantial evidence in itself can not be the basis of conclusion on any fact but if the facts are proved through direct evidence, supporting circumstantial evidence can enhance the creditability of the direct evidence but no conviction can be based on merely the circumstantial evidence. DR has to deal with the situation as per the circumstances of each case. Brief or Arguments: Once both the parties have closed their cases, in criminal jurisprudence, prosecution is supposed to lead his arguments in support of the charges and defence counsel is required to argue the same in support of the accused. In courts, it is called Zirah and is conducted in courts orally by the advocates concerned and it continues till both the parties exhaust their arguments and counter arguments. The purpose of this process is to show to the judge as to how the material on trial record proved the charges or how the same has disproved the charges. Since the judicial authority is supposed to impart justice, this exercise is very vital so as to make things crystal clear to all concerned. Any fact on record can be viewed differently by the respective parties and judge has to impart justice. This process brings in sharp focus the two different versions on facts on record and helps the judge to draw a judicious conclusion. Sometimes, EO takes the position that this process in not provided in the prescribed procedure and hence not required. Defence should insist because if our arguments are on enquiry record, EO will have to consider the same in recording his finding and can not proceed to subjectively consider the material on record. DR must contest and assert his right to argue the case on the basis of material on record. MR generally tries to support the EO on this point but DR should take a stand that since the evidence has proved the charges as false and MR has no case to argue, he is trying to deny the opportunity to the defence against the principles of natural justice. If ultimately EO concede the demand, MR will be given time to submit his written brief under copy to CSE/DR and defence will given equal time thereafter for submitting the defence brief to the EO. No new facts, evidence or document can be introduced through this process and the DR has to argue his case on the basis of entire evidence, prosecution and defence both, to

show as to how the evidence has proved the charges, as to why a particular evidence is to be relied upon and why the contrary evidence is not be relied upon. MR has to explain the entire evidence to establish that the allegation and charges are proved completely beyond an iota of doubt and judicially. DR on his part should argue as to how the principles of natural justice are violated in issuing the charge sheet and/or in conducting the enquiry, what denial of opportunity has taken place, how the preliminary objections have proved to be relevant from the evidence on record and why a particular evidence is to be relied upon and why the contrary evidence is not be relied upon. DR has to explain the entire evidence to establish that the allegation and charges are proved completely false beyond an iota of doubt and judicially. DR has to give his argument on the brief submitted by the MR to demolish his version in Toto. Even if EO do not permit the process of argument, DR must submit his written arguments immediately so as to reach to him before the findings are recorded by him. Findings of the EO: After the conclusion of the enquiry proceedings and receipt of written brief from both the parties, EO is supposed to record his findings. If EO is not DA, he will submit findings to the DA. A copy the findings are required to be given to the CSE along with the proposed punishment, if any charge is declared as proved. CSE is to be given opportunity by way of personal hearing by the DA (and not by the EO) to show the reasons as to why the punishment proposed should not be imposed on the CSE. DR is supposed to attend this personal hearing with CSE. MR has no role in this hearing, though sometimes, he attends the personal hearing. DR has to show the reasons for not inflicting the punishment in two parts. First being the ground that EO/DA is in error in holding the charges as proved and since punishment follows from such declaration, punishment can not be imposed. Secondly even if charges are assumed, to have been proved, DR should submit his reasons to say that the proposed punishment is disproportionate to the gravity of the allegations/charges. Some DA takes the position that the personal hearing is only for the submission on the quantum of punishment and not on the findings and hence DR can only make submissions regarding the quantum of the proposed punishment. It is highly objectionable and against the principles of natural justice and tantamount to the denial of opportunity. In practice, at this stage, the DA, neither hears the DR plea nor records the same in the proceedings of the personal hearing. As such DR should attend the personal hearing with his written submissions on the first part of errors in holding the charges as proved and submit the same as a document in the personal hearing with due noting in the proceedings. DR should record his reasons regarding the disproportionate punishment, without in any way admitting that charges are proved, by indicating the approximate financial loss to the accused and its impact on his family and other extenuating and mitigating circumstances including the past service record, if clean. DR should go through the findings carefully and find out the defects, infirmities and errors therein vis--vis material on record. Since DR has prepared his defence brief and is aware of the material on record and MR brief, defects of the findings are visible crystal clear. Domestic enquiry is quasi-judicial and conducted according to the principle of natural justice and EO is under duty to act judicially. EO is supposed to go through the enquiry proceedings, documents on record and written briefs and come to proper, rational and judicious conclusion. In certain cases, enquiry results into dismissals, punishment is challenged in court of law and judiciary is bound to examine the findings critically and from legal angle. In courts, not only error of law but error of fact is critically examined.

If EO acted on inadmissible evidence or has refused to admit admissible evidence or if findings are not based on the evidence, error in finding the facts amounts to error of law. EO can not assume the facts and facts need to be proved through evidence. EO can not import his personal knowledge, beliefs and assumptions in arriving at the conclusion. EO has to apply his mind to the evidence, discuss the evidence and can not merely write the ipsi dixit that the charges are proved. The findings must show the reasons for the conclusion, evidence to support the reasons, reasons as to why the evidence of prosecution appealed to him in preference to the evidence on behalf of the accused. It is well settled that that when the findings are based on no evidence, or based on conjectures and surmises, the findings suffer with the additional infirmity of non-application of mind and stands vitiated. Findings and also the conclusions based on no legal evidence or based on merely surmises and conjectures unrelated to the evidence on record, disclosing nonapplication of the mind are perverse. When the findings are such that on the basis of material on enquiry record, no reasonable person could have arrived at then it is called perverse findings. When the findings do not disclose the process through which the conclusion is made and the evidence, which appealed to the DA/EO, is left to speculation and reasons in support of the conclusion are conspicuous by their absence, the findings are ipsi dixit of the DA/EO. If the findings are not reasoned findings, no speaking order is passed and conclusions are mere ipsi dixit unsupported by any analysis of the evidence or reasons in support of the conclusion, findings are liable to be set aside. If the DA has not conducted the enquiry, the EO has submitted the findings to him, he is required to go through all the above aspects of the findings and only thereafter concur with the findings. If the matter of punishment imposed ultimately goes to court of law, the courts will not hesitate to interfere where there has been illegality or an irregularity of the procedure, or violation of Principles of Natural Justice or where the findings are vitiated by error of law or based on irrelevant considerations or are not supported by any legal evidence and are wholly inconsistent with the recorded proceedings or are of such a nature as no reasonable person could have arrived at such conclusions and set aside the findings and punishment flowing from the same. Essence of judicial approach being the objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice based on fair play and contrary to perversity and arbitrariness, bias and surrender of independence of judgement vitiating the conclusions drawn forces the courts to set aside such findings in judicial review. When the DA in the matter of imposing the punishment or in determining the guilt of the accused, took into consideration the directions or instructions of which accused has no notice, process stands vitiated by violation to the principles of natural justice and on the ground of bias. As such pointing out all the defects and infirmities in the enquiry and findings in the written statement at the stage of Personal hearing serve a vital purpose of putting extreme pressure on the DA to thing twice before imposing the punishment. Once the proceedings of the personal are over, enquiry is complete. In due course of time, DA will record his final findings in which he is supposed to record his reasons on the defence submissions in brief and pass reasoned and speaking order. Punishment finally imposed through final finding shall be imposed on the employee.

Appeal: Para 14 of the settlement dated 10.04.2002 provides that the employee can prefer an appeal within 45 days from the date when order of punishment is imposed on the employee, which shall be disposed off within two months. It provides that in cases of dismissal, appellate authority will hear the employee or his representative and such hearing must commence within one month from the date of receipt of the appeal and shall be disposed off within one month from the date of conclusion of the hearing. DR has to prepare the appeal and make submission in personal hearing before the appellate authority in cases of the dismissals. The submissions made in the enquiry and defence brief and not considered by the EO and the defects and infirmities of the findings of the EO as also the submissions made in the personal hearing against the findings of the EO and not considered by the DA and the defects and infirmities of the final findings shall be mentioned as the ground of appeal with a request to declare the charges as not proved and acquit the CSE. Further the disproportionate punishment should also be made as ground of the appeal as submitted earlier in the personal hearing granted by the DA. In practice, time frame is rarely followed. Personal hearing is not granted as per sprit of the service conditions and as such DR should reiterate the main points of appeal and disproportionate punishment in the personal hearing, whenever granted. Union should follow-up for timely disposal of appeals particularly in cases of dismissals. Adjudication: Only in few cases, capital punishment of dismissal is imposed and one can anticipate whether the management has the mind to impose such punishment in a particular case. This assessment, however, in no way should be a ground to take things casually. Right from the beginning, DR should assume that management could go up to any extend and things may change at any stage in course of proceedings and hence there is no scope of complacency on the part of DR. When justice is not done even after the appeal, union may have to raise industrial dispute before ALC and on FOC, the Government refers the dispute for adjudication by the industrial tribunal. The representative of the union has the right to appear on behalf of the employee before the industrial tribunal and there were the days when our leaders used to appear in such cases. Unfortunately, this practice is given a good bye and an advocate is engaged to represent the employee in the tribunal. Alternatively, in specific cases, employee may have to invoke the writ jurisdiction of the High Court for immediate relief. In high court, only a practicing advocate contests the matter. In court of law, it is not the management concerned but the disciplinary authority and Enquiry officer concerned, even at the expenses of bank, who has to defend their actions. In industrial Tribunal/High Court, DA/EO has to appear as a witness and face cross-examination of the advocate. Findings of the EO vis--vis recorded material, findings of the DA vis--vis defence submissions and the order passed by the appellate authority vis--vis grounds mentioned in the appeal are critically examined by the judiciary in the back ground of rulings of various High courts and supreme courts on such points in thousands of cases. While deciding the cases, the Tribunal and High court as also Supreme Court pass strictures against these quasi-judicial authorities fir abusing and misusing their authority and imparting injustice in place of justice and set aside the punishment imposed. Advocates need to be briefed of the core issues of injustice caused. Pleadings must be based on material on record. All the recorded objections of the DR, all the rulings given by the EO/DA/Appellate authorities are required to be briefed to the advocate. DR has to create record

of violations of principles of natural justice, denial of opportunities, biased and baseless findings, perversity of the findings, defects of the finding consciously for the vital use in litigation. Conclusion: MR, EO, DA and appellate authority undertake the task as a part of their job profile and may have their own compulsions. They may also have certain material in their knowledge, which for various reasons they may not disclose in the enquiry proceedings and some time decisions are based on such material. BY and large, these authorities have no personal interest in the matter. DR, on the other hand, attends this work with a sense of mission and as a part of trade union obligation and social service. The satisfaction, which one gets after defending an employee successfully, is a great achievement. Domestic inquiries are quasi-judicial proceedings based on common sense. With a little practice, one can learn the art and discharge the obligation efficiently and successfully. ***********************